By next year, it is estimated that one in six of the British workforce will be women over the age of 50. These women will (if they have not already) go through the menopause at an average age of 51. The pre-menopause stage called peri-menopausal or transition occurs several years before the menopause and can cause physical and psychological challenges for women. We need to begin to talk openly about this last taboo in the workplace.

The challenges and how to overcome them are not openly discussed and this is a major issue. It has been estimated in research by Bupa in 2019 that 900,000 women in the U.K. left their jobs because of menopausal symptoms. From a financial perspective, time taken off work in the UK for menopausal symptoms has caused the productivity loss of 14 million working days annually.

Why do we need to talk about it?

In the UK Carolyn Harris, MP, has called for a “menopause revolution” and her private member’s bill on the menopause will be debated in Parliament on 29 October 2021. The primary focus of the bill is to exempt Hormone Replacement Therapy (HRT) from NHS prescription charges in England – with it already being exempt in Scotland and Wales. It is a start, but more needs to be done.

The Government Equality’s Office research shows that women experience difficulty looking for work or reducing their working hours during transition. Whilst we need more research on this topic, it seems clear that women are dropping out of the workforce or that their careers are being negatively impacted because of transition.

However, there has been some progress over recent years. In October 2019, the Government conciliatory body, ACAS, produced their first menopause at work guidelines which helps employers support menopausal.

The legal position

From a legal perspective, there is a duty to protect the health and wellbeing of the workforce and a risk assessment should consider the needs of peri-menopausal women and adjustments should be made accordingly.

As well as protection under the age and sex discrimination laws, transition can amount to a disability if it fulfills the criteria under the Equality Act 2010 – in any event employers should make requisite adjustments to support their employees.

There are currently only three cases on menopause transition in the UK and all three are non-binding Employment Tribunal decisions:

  1.  The most recent was the 2021 case of Ms A Kownacka v Textbook Teachers Limited where Ms Kownacka (who had cancer) succeeded in her claim for harassment-related to disability – the successful part of her claim was due to disability-related harassment as a result of her employer’s lack of sympathy that she would be forced into the menopause at the age of 37 and was unable to conceive.
  2.  The 2017 case of Davies v Scottish Courts and Tribunals Service where Ms Davies was deemed to be disabled because of her transition symptoms. Ms Davis was unfairly dismissed because she was dismissed in consequence of such symptoms. In this case she could not recall if her medication had been placed in a jug of water and there was a risk that two male colleagues had drunk from that jug. She was accused of lying and bringing the court into disrepute. The Tribunal decided that the employer had failed to protect her during the course of its investigation and had not considered that her conduct was affected by her disability. Her memory loss and confusion were caused by her disability which was in turn the result of her transition.
  3. The 2011 case of Merchant v BT Plc where Ms Merchant’s doctor had confirmed in writing that Ms Merchant going through the menopause, which could affect her level of concentration. Her manager decided not to carry out any further investigations relating to her symptoms and her claims for direct sex discrimination and unfair dismissal were successful. It was held by the Tribunal that the manager would never had adopted “this bizarre and irrational approach with other non-female-related conditions”.

It is likely that we will see increasing numbers of Tribunal claims from women in the UK workforce as the population grows and many employers keep their head in the sand. From a legal and risk perspective it is essential that employers wake up to minimise the detrimental consequences to their organisation of treating women less favourably because of their transition.

Is a workplace policy the answer?

There is currently a petition to require employers with more than 250 employees to introduce a menopause policy. At the time of writing, 3,000 signatures have been added to the petition. If it reaches 100,000 signatures, then it will be debated in Parliament. Singling out a mandatory menopause policy for larger employers is unusual but certainly thought-provoking.

It is clear that there needs to be an overhaul of employment policies to address this important issue:

a. Voluntary menopause policies should be considered – this could include the definitions of menopause and the symptoms, focus on how managers can assist and suggest different websites that may prove to be helpful.

b. In addition, the menopause could be incorporated into existing policies. This would entail adapting equal opportunities, flexible working and sickness absence policies.

What else can employers do?

  • Employers can educate their staff as part of their training programmes. This should not solely focus on the physical symptoms and how to make the workplace more comfortable but also on trying to make this change positive for both the individual and for the workforce.
  •  They can also ensure that any company doctors and Occupational Health experts are encouraged to attend the Menopause Charity’s free training for medical professionals.
  • Employers can expressly mention transition in diversity and equality training sessions. It needs to become common language in the workplace.
  • As a more general means of support, employers could investigate how to improve the working environment, e.g. ensure access to fans and good ventilation, clean and comfortable toilet facilities with appropriate sanitary disposal bins and feminine hygiene products – ideally access to female only showers.
  • Finally, ensure that sickness absence tracking systems records absence for menopause-related symptoms separately as such absence could be disability-related and therefore, should not be allowed to impact on performance management processes or form part of a selection for redundancy.

The training programmes for employees should not be limited to mid-aged women although some tailored training for small support groups can be very helpful. Younger women need to see the menopause in a positive light and not with fear. Men need to understand what colleagues and family members may be going through and it should not be forgotten that trans men may go through the menopause.

There are several ways that employers can be proactive and support their employees’ health at different stages of their working life. This will create a better work environment, hopefully retain women at a time that we need to close the gender pay gap and significantly minimise the employer’s legal and reputational risk of women successfully suing for discrimination because of the menopause.

 

 

 

 

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Emma Clark

Emma Clark is an employment lawyer at Keystone Law who has extensive expertise in employment litigation, corporate transactions, and advisory work. Emma has advised organisations and senior individuals for over 20 years and works with clients across a range of sectors and jurisdictions.

Her employment specialisms include advising on strategic HR projects, redundancy-related issues, employment contracts and handbooks, sensitive terminations among others.

Emma delivers tailored training sessions to organisations on the menopause, covering both legal and practical matters. They are delivered with qualified coaches and psychologists who view the transition period through a positive lens for the workforce.